Madras High Court
Marappa Gounder vs Muthusamy on 26 August, 2021
S.A(MD)No.242 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.242 of 2013
Marappa Gounder ... Appellant / Respondent / Plaintiff
-Vs-
1.Muthusamy
2.Munusamy ... Respondents / Appellants / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the decree and judgment passed by the learned Principal Sub-
Judge, Karur, dated 24.09.2012 made in A.S.No.31 of 2011, reversing the
decree and judgment made in O.S.No.458 of 2007, dated 14.12.2010 on the
file of the Additional District Munsif, Karur.
For Appellant : Mr.Madhavan
for Mr.M.Karthikeya Venkitachalapathy
For R1 : Mr.R.Vijayakumar
for Mr.S.Gokul Raj
For R2 : Mr.Raguvaran Gopalan
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S.A(MD)No.242 of 2013
JUDGMENT
The plaintiff in O.S.No.458 of 2007 on the file of the Additional
District Munsif, Karur, is the appellant in this second appeal.
2. The suit was filed for the relief of partition. The case of the
appellant is that the suit property measuring an extent of 10 acres and 82
cents in Survey No.914 in Punnam Village, Aravakurichi Taluk, belonged
to one Kaliyanna Gounder / father of the first defendant Muthusamy.
3. According to the plaintiff, his grandfather had purchased 1 acre
and 80 cents in the suit property vide Ex.A1 dated 02.10.1916 and Ex.A2
dated 07.05.1918. The revenue records reflect the names of the parties
jointly. Seeking partition, he filed the said suit. The plaintiff examined
himself as P.W.1 and marked Ex.A1 to Ex.A13. The first defendant
Muthusamy examined himself as D.W.1. Ex.B1 to Ex.B3 were marked.
An advocate commissioner was appointed and he was examined as D.W.2.
His reports and plans were marked as witness exhibits 1 to 4. After a
consideration of the evidence on record, the trial Court by judgment and
decree dated 14.12.2010 granted preliminary decree allotting 1/6th share in
favour of the plaintiff in the suit property. Aggrieved by the same, the
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S.A(MD)No.242 of 2013
defendants filed A.S.No.31 of 2011 before the Principal Sub Court, Karur.
By judgment and decree dated 24.09.2012, the decision of the trial Court
was reversed and the suit was dismissed and the appeal was allowed.
Challenging the same, this second appeal came to be filed.
4. The second appeal was admitted on the following substantial
questions of law:-
“(a) Whether the lower appellate Court failed to note that when
mutation on ground and in the revenue registry not having been done so far
the proper inferences taken by trial Court that there had been no partition so
far ought not to have been disturbed unless by definite contra evidence?
(b) Whether the lower appellate Court failed to note that the
defendants have not clearly stated that there was at least oral partition on a
definite date or period being pleaded and that therefore the cause for demand
for partition cannot be escheated ?”
5. Heard the learned counsel on either side.
6. The learned counsel appearing for the appellant submitted that the
appellant had earlier filed O.S.No.748 of 2005 seeking the relief of
mandatory injunction for removing the obstruction caused by the
defendants in the pathway that is running across the suit property. The suit
was originally decreed. But it was reversed in A.S.No.34 of 2007. The first
appellate Court had taken the view that the plaintiff must pray for the relief
of partition and that he erred in seeking eastmentary right alone.
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S.A(MD)No.242 of 2013
7. According to the appellant's counsel, the present suit was filed in
terms of the observations made in A.S.No.34 of 2007 (Ex.A7 & Ex.A8).
The first appellate Court erred in invoking Order 2 Rule 2 and the principle
of res judicata for reversing the judgment of the trial Court and non-suiting
him in toto. He called upon this Court to answer the substantial questions
of law in favour of the appellant and set aside the judgment and decree
passed by the appellate Court and restore the decision of the trial Court.
8. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not warrant any
interference.
9. I carefully considered the rival contentions and went through the
evidence on record. As rightly pointed out by the learned counsel
appearing for the respondents, the appellant is tracing his title through
Ex.A1 and Ex.A2 which are dated 02.10.1916 and 07.05.1918.
10. The learned counsel appearing for the respondents also took me
through the evidence of P.W.1. In the cross examination, the appellant had
categorically admitted that he is in separate and exclusive enjoyment of 1
acre and 80 cents in the suit property. He also conceded that the defendants
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S.A(MD)No.242 of 2013
are the owners of the remaining extent of the suit property. Virtually, the
appellant had admitted that the suit property had already been partitioned
and that the parties are enjoying separately and not in common. I wanted to
know if the respondents will have any objection for issuing separate patta
in favour of the appellant in respect of the property which he is now
enjoying.
11. The learned counsel appearing for the respondents, on
instructions, submitted that the respondents would not have any objection.
12. Recording the said submission made by the learned counsel for
the respondents, the judgment and decree passed by the first appellate
Court is confirmed. The second appeal is dismissed. No costs.
26.08.2021
Internet : Yes/No
Index : Yes/No
rmi
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S.A(MD)No.242 of 2013
G.R.SWAMINATHAN.J.,
rmi
To
1.The Principal Sub-Judge, Karur.
2. The Additional District Munsif, Karur.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.242 of 2013
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